Citation Nr: 0714841
Decision Date: 05/18/07 Archive Date: 06/01/07
DOCKET NO. 03-34 899A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Colorado Division of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Schechter, Counsel
INTRODUCTION
The veteran had active service from July 1975 to June 1978,
and from December 1978 to December 1982.
The appeal comes before the Board of Veterans' Appeals
(Board) from a December 2002 rating decision of the above
Department of Veterans Affairs (VA) Regional Office (RO).
The veteran testified at a videoconference hearing before the
undersigned Veterans Law Judge in February 2007, a transcript
of which is of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellantwhen further action is required.
REMAND
Service connection for PTSD generally requires medical
evidence establishing a diagnosis of the condition, credible
supporting evidence that the claimed in-service stressor
actually occurred, as well as a link, established by the
medical evidence, between current symptomatology and the
claimed in-service stressor. 38 C.F.R. § 3.304(f) (2006);
Cohen v. Brown, 10 Vet. App 128 (1997).
The veteran has never contended that she engaged in combat
with the enemy as defined within 38 U.S.C.A. § 1154(b) (West
2002 & Supp. 2006). As a result, as a matter of law, a
medical provider cannot provide supporting evidence that a
claimed in-service stressor event actually occurred based
merely upon post-service medical examination. See Moreau v.
Brown, 9 Vet. App. 389, 395-6 (1996). In addition, the
veteran's own testimony, standing alone, will not be
sufficient to establish a non-combat stressor. Id.
Furthermore, service department records must support, and not
contradict, the claimant's testimony regarding non-combat
stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994).
The veteran contends that her in-service stressor was a
personal assault, more specifically, an attack on her by
several individuals, involving rape, as addressed briefly
below.
In Patton v. West, 12 Vet. App. 272 (1999), the Court
emphasized that the holdings in Moreau, supra, to the effect
that more than mere medical nexus evidence is required to
fulfill the requirement for "credible supporting evidence"
of a claimed stressor and that "[a]n opinion by a mental
health professional based on a post-service examination of
the veteran cannot be used to establish the occurrence of the
stressor," were made in the context of discussing PTSD
diagnoses other than those arising from personal assault.
Id. at 280; see also Cohen v. Brown, 10 Vet. App. 128 (1997).
With regard to personal assault cases, the Court pointed out
in Patton that "VA has provided special evidentiary
development procedures, including the interpretation of
behavior changes by a clinician and interpretation in
relation to a medical diagnosis." Patton, supra, citing VA
Adjudication Procedure Manual M21-1, Part III, 5.14c (8))
(later redesignated as Part VI, 11.38b(2), and now
rescinded). The Court also held that those provisions of
Manual M21-1, which provided special evidentiary procedures
for PTSD claims based on personal assault, were substantive
rules that were the equivalent of VA regulations. See YR v.
West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App.
128 (1997).
The Board notes that the above cited manual provisions have
been rescinded. The current version of 38 C.F.R. § 3.304(f)
essentially serves to codify the previously existing
provisions of VA Adjudication Procedure Manual M21-1, and
that new manual provisions provide guidance in developing
PTSD claims based upon personal assault. See VA Adjudication
Manual (Manual Rewrite), M21-1MR, Part IV, Subpart ii,
Chapter 1, Section D, Para. 17.
The regulation at 38 C.F.R. § 3.304(f)(3) provides:
If a PTSD claim is based on in-service personal
assault, evidence from sources other than the
veteran's service records may corroborate the
veteran's account of the stressor incident. Examples
of such evidence include, but are not limited to:
records from law enforcement authorities, rape crisis
centers, mental health counseling centers, hospitals,
or physicians; pregnancy tests or tests for sexually
transmitted diseases; and statements from family
members, roommates, fellow service members, or
clergy. Evidence of behavior changes following the
claimed assault is one type of relevant evidence that
may be found in these sources. Examples of behavior
changes that may constitute credible evidence of a
stressor include, but are not limited to: request for
transfer to another military duty assignment;
deterioration in work performance; substance abuse;
episodes of depression, panic attacks, or anxiety
without identifiable cause; or unexplained economic
or social behavior changes. VA will not deny a PTSD
claim that is based on in-service personal assault
without first advising the claimant that evidence
from sources other than the veteran's service records
or evidence of behavior changes may constitute
credible supporting evidence of the stressor and
allowing him or her the opportunity to furnish this
type of evidence or advise VA of potential sources of
such evidence. VA may submit any evidence that it
receives to an appropriate medical or mental health
professional for an opinion as to whether it
indicates that a personal assault occurred.
The RO, by a VCAA letter in April 2002, provided notice to
the veteran of evidentiary requirements relating to personal
assault PTSD claims, as mandated by the VCAA. Veterans
Claims Assistance Act of 2000 (VCAA), as codified in
pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 &
Supp. 2006); 38 C.F.R. § 3.159, 3.326(a) (2006). The
veteran's testimony informing of possible corroboration of
the alleged stressor by fellow service members requires
additional evidentiary development of the veteran's claim, in
accordance with these special development rules for claims
based on alleged personal assault.
As she described it during a PTSD examination in July 2002,
the claimed in-service stressor consisted of her being gang-
raped by a number of soldiers, at least some of whom who were
under her command, while she was returning to military
facilities from a venue where she had consumed some quantity
of alcohol, rendering her in a compromised state. She
contends that the rape occurred while she was stationed in
Hanover, Germany, and that she did not report the incident to
anyone, but rather only told her husband at the time, a
civilian who was then living in the United States.
The veteran provided a somewhat different version of the
event at her hearing before the undersigned, when she
contended that she was struck in the back of the head and
then gang-raped, and that she did not know her assailants.
She further testified that, while she did not know the
identities of her assailants, she was fearful that in the
remote and isolated base where they were stationed, fellow
soldiers who may have been involved would likely have killed
her if she reported the incident.
At the hearing, she also testified that a fellow soldier in
her squad, whom she names on pages 15 and 16 of the hearing
transcript, knew of the rape, and that he sheltered her after
the rape. Also at the hearing, the veteran named a second
fellow soldier, a sergeant, who "knew something was wrong
so he pulled me out of the tent I was sleeping in and he had
me become his driver so he could keep an eye on me, I
guess." (Hearing transcript, at 9) Thus, this sergeant may
be a second soldier who had knowledge of the alleged rape,
perhaps learning of it through secondary sources.
The veteran has repeatedly contended that her 201 (personnel)
file is incomplete, and that missing personnel records from
Fort Carson, her last place of stationing in service, would
have reflected performance difficulties, which she contends
were reflective of a change in her behavior following the
assault. Specifically, she contends that she received an
Article 15 (non-judicial punishment) while stationed at Fort
Carson which is not reflected in her 201 file. One Article
15 that she received which is documented in the claims file
was dated in December 1976, years prior to the alleged
personal assault. The veteran has not denied the prior
Article 15, but nonetheless contends that a subsequent
Article 15 would be reflective of an impact from the claimed
stressor. Upon remand, a further attempt should be made to
obtain any additional personnel records, including records of
disciplinary actions, and any evaluations, reports, or
actions taken related to her final stationing at Fort Carson
or related to her discharge from service.
At past mental health examinations, the veteran recounted a
life history with many acute traumatic episodes as well as
intervals of traumatizing circumstances, including long
periods of physical and sexual assault or abuse, both as a
child and prior to and subsequent to service. Also after
service, she was convicted of murdering a toddler, based on
her pleading guilty to that charge. She served prison time
for that crime. She described that event as being in part
accidental, though she conceded, upon psychiatric
examination, that she had improperly directed anger at that
child. That post-service action, as well as many psychiatric
findings of record, may reflect mental disturbance not
commonly seen among PTSD claimants. Medical records within
the claims folders document multiple psychiatric diagnoses
other than PTSD, including bipolar disorder, bipolar
affective disorder, dissociative disorder, anxiety disorder,
personality disorder, and polysubstance abuse. (The veteran
previously submitted a claim for service connection for
bipolar disorder, but that claim was denied and is not on
appeal to the Board. )
In addition, while some medical examiners have attributed
current PTSD at least in part to the veteran's alleged in-
service rape, others have not diagnosed PTSD, or have noted
many other PTSD stressors in her history. Thus, if a further
PTSD examination is required upon remand, other psychiatric
disorders, as well as PTSD due to non-service stressors, will
need to be distinguished from PSTD due to any corroborated
in-service stressor.
Accordingly, the case is REMANDED for the following action:
1. The RO should request that the veteran
provide any statements in support of her
alleged PTSD stressor, both from any
individuals whom she has previously
identified, including in testimony at her
hearing before the undersigned, and from
any other individuals who may corroborate
the alleged stressor incident or the
veteran's contemporaneous reporting of or
reaction to that incident, or any other
in-service stressor incidents, or any
other corroborating evidence.
a. The veteran should be asked to
provide the name, rank, unit, and any
other pertinent identifiers she may
know concerning the fellow soldier in
her squad as named on pages 15 and 16
of the hearing transcript, and the
sergeant as named on page 9 of the
hearing transcript. She should state
what knowledge each of these
individuals had of the stressor
incident, and how and when they came
by that knowledge.
b. All records and responses
received should be associated with
the claims folder, and any indicated
development should be undertaken, to
include requesting corroborating
statements from named fellow soldiers
or other identified witnesses if
feasible, asking them to provide any
knowledge or information they may
have concerning any stressful
event(s) experienced by the veteran,
and how they came by that knowledge.
The RO should follow appropriate
procedures when making these requests
or queries, including obtaining
authorization from the veteran, as
appropriate, to protect her privacy
and that of her records.
2. The RO should also seek, from any
indicated sources, any additional service
personnel records, or any additional "201
file" not reflected in the service
personnel record contained within the
claims folder. This should include any
additional information regarding military
disciplinary actions or criminal charges
against the veteran in service, as well as
any available similar service files of the
veteran not yet obtained. This should
include a search for any service personnel
records from the period of her stationing
at Fort Carson, records of disciplinary
actions including any Article 15's issued
while stationed at Fort Carson and records
of any associated investigations
conducted, as well as any records of
evaluations, reports, or actions taken as
associated with her discharge from service
in December 1982. All requests made, and
all records and responses obtained should
be associated with the claims folder.
3. After completion of the foregoing, the
RO must make a finding as to any
independently verified in-service
stressors, including any alleged personal
assault stressors for which any
corroboration, including any types of
corroboration deemed potentially
acceptable pursuant to 38 C.F.R. §
3.304(f)(3), has been obtained.
4. After completion of all of the above
instructions, if the RO determines that a
corroborated in-service stressor is
present, a VA psychiatric examination for
compensation purposes should be afforded
the veteran, to address whether a
diagnosis of PTSD, due to verified in-
service stressor(s) or otherwise
corroborated in-service personal assault
stressor(s), may be made. All necessary
tests should be conducted. The claims
folder must be made available to the
examiner for review before the
examination. In addressing the questions
below, the examiner's opinion must be
informed by a review of the veteran's
psychiatric history and findings as
documented upon prior psychiatric
examinations, including the VA PTSD
examination conducted in July 2002. Any
necessary, non-invasive tests should be
conducted. The examiner should then
address the following:
a. What are the veteran's current
psychiatric disorders?
b. If an in-service stressor has
been independently verified or a
personal assault stressor has been
otherwise corroborated, and PTSD is
present, then is it at least as
likely as not (i.e., to at least a
50-50 degree of probability) that
PTSD is due to an independently
verified in-service stressor or an
otherwise corroborated in-service
personal assault stressor?
c. A rationale should be provided for
all opinions given, and the factors
upon which each medical opinion is
based must be set forth in the report.
d. If the examiner cannot answer any
of the questions posed without
resorting to unsupported speculation,
the examiner should so state.
5. Note: The term "at least as likely as
not" does not mean merely within the realm
of medical possibility, but rather that the
weight of medical evidence both for and
against a conclusion is so evenly divided
that it is as medically sound to find in
favor of causation as it is to find against
it.
6. Thereafter, the RO should readjudicate
the remanded claim de novo. If any of the
benefit by the remanded claim is not
granted to the veteran's satisfaction, the
veteran and his representative should be
provided with a supplemental statement of
the case and afforded the appropriate
opportunity to respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
__________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a final decision
of the Board of Veterans' Appeals is appealable to the United
States Court of Appeals for Veterans Claims. This remand is
in the nature of a preliminary order and does not constitute
a final decision of the Board on the merits of the appeal.
38 C.F.R. § 20.1100(b) (2006).